SOORAJ DEVI Vs. PYARE LAL

JUDGEMENT

(1.) This appeal by special leave is directed against an order of the Allahabad High Court dismissing an application for "clarification" of an earlier order made by the court in a criminal proceeding.

(2.) The dispute in this appeal relates to a property described as house No. 24, 47, Birhana Road, Kanpur. A suit filed by the South India Trading Company against Jethmal Laxmichand was decreed and execution proceedings were taken for the attachment and sale of the aforesaid house property. The house was owned by one" Khem Raj", who died leaving a widow, Smt. Sooraj Devi (the appellant) and a son, Kailash Chandra Jain (the second respondent). The property was purchased by Pyare Lal (the first respondent). Pyare Lal obtained possession through the Civil Court Amin on 8th October, 1965, but in his absence Kailash Chandra Jain is said to have removed the lock and entered into possession. In a criminal proceeding against him on a complaint by Pyare Lal, he was ultimately convicted and sentenced by the High Court under Section 448, Indian Penal Code by an order dated 1st September, 1970, under which the High Court also directed "that house No., 24/ 47, Birhana Road, Kanpur be restored to the possession of the complainant", Pursuant to that order, Pyare Lal applied for possession. The appellant filed an objection, asserting a right to the property. The Magistrate overruled her objection, observing that it was open to her to establish her right by way of suit. The rejection of her objection was up held by the High Court by its order dated 21st July, 1978. The appellant then filed Criminal Miscellaneous Application No. 5127 of 1978 before the High Court under Section 482 of the Code of Criminal Procedure alleging that she was not a party to the criminal proceeding against Kailash Chandra Jain, that she was in possession in her own right, and that the earlier order of the High Court dated 1st September, 1970, directing restoration of-possession to Pyare Lal be clarified by a declaration that it was not binding on her and did not affect her possession. On 5th January, 1979, the High Court dismissed the application in view of the decision of this Court in State of Orissa v. Ram Chander Agarwala, AIR 1979 SC 87. The order has led to this appeal.

(3.) Before passing on the merits of this appeal, we may observe that the house property has been, and still is, the subject of civil litigation. Civil Suit No. 73 of 1963, was filed by Kailash Chandra Jain and his minor sons alleging that they were entitled to the house property and the decree obtained by the South India Trading Company was not binding on them and could not be executed against them. As the property was meanwhile sold and the sale confirmed the suit was regarded as infructuous and the plaint was allowed to be rejected for want of court-fee. Instead, Civil Suit No. 53 of 1964, was filed by the minor sons of Kailash Chandra Jain claiming that they were joint owners of the property, that the sale conferred no right, title or interest in Pyare Lal and that they were entitled to an injunction. The appellant, who had originally been impleaded as a defendant in the suit, was transposed to the array of plaintiffs. The suit was dismissed in default, but subsequently restoration was allowed by the Trial Court on payment of costs, and the time for payment of costs was extended by the High Court. A third suit, Civil Suit No. 18 of 1977, was filed by the appellant for partition. An application for interim injunction for preserving the appellant's possession in the house property has been dismissed by the trial court.